During February of 1997, appellant was tried
by a general court-martial composed of officer members at Dover Air Force
Base, Delaware. In accordance with his pleas, he was found guilty of assaulting
his wife, in violation of Article 128, Uniform Code of Military Justice,
10 USC § 928. Contrary to his pleas, he was found guilty of 2 specifications
of assaulting his daughter1
(when she was 2-months old and when she was almost 4 years old), in violation
of Article 128. He was sentenced to a bad-conduct discharge and confinement
for 24 months. On May 30, 1997, the convening authority approved this sentence
but waived payment of automatic forfeitures of pay and allowances in the
amount of $1615.00 per month for 6 months from March 12, 1997. He further
directed this money be paid to appellantís wife for her and her childís
benefit. On February 16, 1999, the Court of Criminal Appeals affirmed,
but returned the record to the Judge Advocate General for appropriate action.
SeeUnited States v. Gorski, 47 MJ 370 (1997). Unpub. op.
at 2.

On August 18, 1999, this Court granted review
in this case on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ABUSED ITS DISCRETION IN HOLDING THAT APPELLANT WAIVED HIS RIGHT TO COUNSEL
POST-TRIAL EVEN THOUGH THE STAFF JUDGE ADVOCATE FAILED TO ENSURE THAT APPELLANT
WAS REPRESENTED BY SUBSTITUTE COUNSEL FOR PURPOSES OF THE SUBMISSION OF
POST-TRIAL MATTERS AFTER APPELLANT ASSERTED THAT HIS DEFENSE COUNSELíS
REPRESENTATION AT TRIAL WAS INEFFECTIVE.We hold that a remand for a new staff judge advocateís
recommendation and convening authorityís action is required in this case.
United States v. Johnston, 51 MJ 227 (1999); United States v.
Leaver, 36 MJ 133 (CMA 1992).

The facts pertaining to the granted issue are
delineated in the opinion of the lower appellate court as follows.

Appellantís second assignment of error concerns
the absence of representation by counsel during the post-trial clemency
process. After the trial, the relationship between appellant and his trial
defense counsel deteriorated. At one point, appellant informed his military
defense counsel that he was going to hire civilian counsel to handle the
post-trial processing of his case. The deadline for submission of clemency
matters was 4 May 1997. On 24 April 1997, appellant and the military defense
counsel had a heated discussion. Appellant told the defense counsel at
that time that he no longer needed his services and he would take care
of clemency himself. The record is not entirely clear as to whether this
statement was an unequivocal "firing." However, the statement did leave
the defense counsel with the distinct impression that he was no longer
authorized to act on appellantís behalf.

On 2 May 1997, the military defense counsel
gave appellant a memorandum regarding clemency. Defense counsel acknowledged
in the memo that appellant did not want him to request an extension of
time for submission of clemency matters. The memo also referenced defense
counselís understanding that appellant still intended to hire civilian
counsel. Notwithstanding the appellantís earlier rebukes, the defense counsel
had also prepared an extension letter for appellant to submit to the convening
authority. This letter accompanied the memo. The extension letter informed
the convening authority that appellant was hiring a civilian attorney for
clemency matters and that defense counsel had already forwarded the
record of trial and the Staff Judge Advocateís Recommendation to the civilian
attorney. Appellant did, in fact, submit this extension letter to the
convening authority through the staff judge advocate (SJA). The convening
authority granted an extension until 24 May 1997.

Appellant did not hire civilian counsel to
assist him. Instead, on 20 May 1997, he submitted a clemency package
on his own to the convening authority through the SJA. Included in the
clemency materials was a statement by appellant alleging that his representation
by military defense counsel was inadequate, both before and after the conviction.

Appellant now asserts that the SJA erred by
failing to ensure that he was represented by substitute counsel for purposes
of submitting clemency matters. He argues that once the SJA reviewed the
clemency package, he was placed on notice of a conflict between appellant
and his defense counsel and was duty-bound to contact the defense counsel
to inquire into and resolve the issue of his continuing representation
of appellant. We disagree.

Unpub. op. at 2 (emphasis added).

___ ___ ___

Appellantís case was decided by the Court of
Criminal Appeals on February 16, 1999. Before that court, he argued that
"the staff judge advocateís [sic] erred by failing to ensure that [he]
was represented by substitute counsel for purposes of the submission of
post-trial matters after the appellant asserted that his defense counselís
representation at trial was ineffective." Assignment of Errors at 4. The
Government contended that appellant has not demonstrated that he was "effectively
left Ďwithout counsel at allí" during the clemency process. It attempted
to distinguish this case from our decision in United States v. Leaver,
36 MJ 133 (1992), by noting that appellant "did not request" appointment
of "substitute counsel" but instead chose civilian counsel. It argued that
by this conduct, "[a]ppellant effectively waived his right to have" assistance
of "substitute military counsel." Final Govt. Brief at CCA at 13-14.

The appellate court below accepted this argument
and held that appellant waived his right to appointment of substitute military
counsel by inaction. It said:

An accused has the ability, as was demonstrated
in this case, to terminate the services of his military defense counsel
outright or to cause counsel to refrain from acting on his behalf. Once
that option is exercised, it is the accusedís responsibility to obtain
substitute counsel or to take affirmative steps to enlist the assistance
of the government, through the SJA, in obtaining new counsel. Appellant
did neither in this case. His inaction constitutes a waiver of his right
to counsel.

Absent situations where an SJA has actual knowledge
of (1) a conflict between an accused and defense counsel and (2) continuing
representation of the accused by that counsel, we recognize no requirement
that SJAs become actively involved in ascertaining the intentions of an
accused regarding post-trial representation.

Unpub. op. at 3 (emphasis added). We conclude
that this holding conflicts with our decision in United States v. Leaver,
supra at 135, a case not cited by the appellate court below, and
a remand for a new staff judge advocateís recommendation and convening
authorityís action is required. United States v. Johnston, supra
at 229.

We initially note that the right of a military
accused to effective assistance of counsel after his trial is a fundamental
right. SeeUnited States v. Palenius, 2 MJ 86 (CMA 1977).
In United States v. Leaver, supra at 135, we further held:

[W]here an accused challenges the adequacy
of his counselís trial representation and certainly where the accused expresses
a "desire to sever" his relationship with that counsel, the conflict between
the accused and counsel is so great that appointment of substitute counsel
is required. SeegenerallyCuyler v. Sullivan, 446
U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas,
435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United
States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States
v. Davis, 3 MJ 430 (CMA 1977).Finally, in United States v. Carter, 40
MJ 102, 105 (1994), we held that once the staff judge advocate becomes
aware of a potential conflict of interest, he or she must notify the "defense
counsel of appellantís complaint so that the issue of further representation
could have been resolved."

On the record before us, it was readily apparent
to the staff judge advocate that appellant had challenged the adequacy
of his defense counselís trial representation and expressed his desire
to sever his relationship with that counsel before the convening authority
acted in this case. However, there is no evidence in this case that the
staff judge advocate contacted that defense counsel to resolve this problem.
Accordingly, under Leaver and Carter, no knowing waiver occurred
and substitute counsel should have been appointed regardless of appellantís
failure to request substitute military counsel and his stated intent to
hire a civilian lawyer. SeeUnited States v. Johnston, supra.

The remaining question is whether such error
was prejudicial. See Article 59(a), UCMJ, 10 USC § 859(a).
In cases where a servicemember is effectively without representation during
the clemency process, we presume prejudice. United States v. Johnston
and United States v. Leaver, both supra. Here, appellant
presented extensive clemency matters to the convening authority in a case
where in part he pleaded guilty to assaulting his wife. Yet, he also attached
his post-trial statements with bald assertions that "all the prosecution
witnesses committed purgury (sic) in one way shape or form against me"
and "I am an innocent man convicted of crimes that I did not do." (Accusedís
post-trial submissions of May 20, 1997, and attachments.) These statements,
unwinnowed by defense counselís evaluative judgments, clearly undermined
appellant's clemency package and effectively negated his chance for personal
relief. SeeUnited States v. MacCulloch, 40 MJ 236, 239-240
(CMA 1994);2cf.
United States v. Hood, 47 MJ 95, 97-98 (1997). The U.S. Military
Justice System is perhaps the best in the world. Representation by adequate
counsel is an integral part of that system. Here appellant had adequate
counsel during almost every aspect of his case; however, he was without
counsel at the very end. Having counsel even 99% of the time and no counsel
1% of the time during significant criminal proceedings would doom this
case.

The decision of the United States Air Force
Court of Criminal Appeals and the action of the convening authority are
set aside. The record of trial is returned to the Judge Advocate General
of the Air Force for submission to the convening authority for appointment
of military defense counsel and a new staff judge advocateís recommendation
and convening authorityís action.

FOOTNOTES:

1 The court-martial order
(No. 47) omits the number of years of age ("under the age of years").

2 Appellant
received deferment and waiver of automatic forfeitures to provide for his
dependents. However, his punitive discharge was not changed or his sentence
to confinement reduced to time served as requested.